The House Health-Care Vote and the Constitution

[IndianaGreen]

Every bill which shall have passed the House of Representatives and the Senate, shall, before it become a law, be presented to the President of the United States...

Article I, Section 7
United States Constitution

http://topics.law.cornell.edu/constitution/articlei#section7

The House Health-Care Vote and the Constitution

No bill can become law unless the exact same text is approved by a majority of both houses of Congress.

By MICHAEL W. MCCONNELL

Democratic congressional leaders have floated a plan to enact health-care reform by a procedure dubbed "the Slaughter solution." It is named not for the political carnage that it might inflict on their members, but for Rep. Louise Slaughter (D., N.Y.), chair of the powerful House Rules Committee, who proposed it. Under her proposal, Democrats would pass a rule that deems the Senate's health-care bill to have passed the House, without the House actually voting on the bill. This would enable Congress to vote on legislation that fixes flaws in the Senate health-care bill without facing a Senate filibuster, and without requiring House members to vote in favor of a Senate bill that is now politically toxic.

The Slaughter solution cannot be squared with Article I, Section 7 of the Constitution.

Senate rules protect against majoritarian overreach by allowing a determined minority to filibuster most types of legislation. The majority needs 60 votes to override a filibuster. One exception, adopted in 1974, is legislation that makes adjustments to spending or revenues to reconcile current law to a budget resolution that has passed Congress. These are called reconciliation bills, and they require only a majority vote.

Last Christmas Eve, the Senate approved a health-care bill by 60 votes, overcoming a Republican filibuster. This is the bill that contains the so-called Cornhusker kickback, the Louisiana purchase, taxes on high-cost health insurance plans and coverage for abortions. Virtually no one now supports that version of the bill, but Senate Democrats no longer have enough votes to pass an alternative bill under ordinary procedures.

That is where reconciliation fits in. If the House passes the Senate bill and the president then signs it into law, reconciliation would permit Congress to pass new legislation making changes to that law. Reconciliation might not solve the abortion coverage problem or other nonbudgetary issues, but it would allow Democrats to correct most of the Senate bill's offensive features.

The rub is that, according to the Senate parliamentarian, reconciliation is permitted only for bills that amend existing law, not for amendments to bills that have yet to be enacted. This means that, for the Senate to be able to avoid a filibuster, House Democrats first have to vote for the identical bill that passed the Senate last Christmas Eve. That means voting aye on the special deals, aye on abortion coverage, and aye on high taxes on expensive health-insurance plans. Challengers are salivating at the prospect of running against incumbents who vote for these provisions.

http://online.wsj.com/article/SB10001424052748704416904575121532877077328.html

[SemiCharmedQuark]

1. Resorting to a RW editorial in the RW Wall Street Journal?

Really?

[IndianaGreen]

2. I actually arrived at the same conclusion before I even read this

and took the trouble to write to some of my friends about this on Sunday.

I posted in DU about the scenario in which a future House were to use Pelosi's scheme to pass legislation that all of us would hate.

Do you wonder why people in fly-over country hate and loath the Beltway's political class? It is precisely because of all the games they all play, at our expense!

[SemiCharmedQuark]

3. Except, whoops, they HAVE used it before. Pelosi actually argued that it was unconstitutional

It went to the courts who disagreed and said that it was in fact constitutional.

So Pelosi is using an already used, constitutional, procedural, approach.

[IndianaGreen]

4. There is case law, Clinton v. City of New York (1998), the line-item veto case

The Slaughter solution attempts to allow the House to pass the Senate bill, plus a bill amending it, with a single vote. The senators would then vote only on the amendatory bill. But this means that no single bill will have passed both houses in the same form. As the Supreme Court wrote in Clinton v. City of New York (1998), a bill containing the "exact text" must be approved by one house; the other house must approve "precisely the same text."

http://online.wsj.com/article/SB10001424052748704416904575121532877077328.html

If this Act were valid, it would authorize the President to create a law whose text was not voted on by either House or presented to the President for signature. That may or may not be desirable, but it is surely not a document that may “become a law” pursuant to Article I, §7. If there is to be a new procedure in which the President will play a different role, such change must come through the Article V amendment procedures. Pp. 29—31.

<snip>

The Article I procedures governing statutory enactment were the product of the great debates and compromises that produced the Constitution itself. Familiar historical materials provide abundant support for the conclusion that the power to enact statutes may only “be exercised in accord with a single, finely wrought and exhaustively considered, procedure.” Chadha, 462 U.S., at 951. What has emerged in the present cases, however, are not the product of the “finely wrought” procedure that the Framers designed, but truncated versions of two bills that passed both Houses. Pp. 17—24.

CLINTON v. CITY OF NEW YORK (97-1374)
985 F. Supp. 168, affirmed.

http://www.law.cornell.edu/supct/html/97-1374.ZS.html

[SemiCharmedQuark]

5. This case directly addresses Deem and Pass and is from 2005:

http://openjurist.org/486/f3d/1342/public-citizen-v-united-states-district-court-for-the-district-of-columbia

[IndianaGreen]

6. See you in court!

A SCOTUS decision is the Law of the Land, while the decision by a Court of Appeals only applies to that District. Was the case appealed? I don't think so.